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2013 DIGILAW 455 (JK)

State Of J&K v. Faizullah Kripak

2013-08-07

ALI MOHAMMAD MAGREY, M.M.Kumar

body2013
M.M. Kumar, CJ. 1. The instant appeal under Clause 12 of the Letters Patent is preferred by the State of J&K and its officers against judgment and order dated 26.07.2012 passed by a learned Single Judge of this Court, holding that the writ petitioner-respondent was entitled to interest at the rate of 9% on account of non-payment of G.P. Fund from the date of his superannuation to the date it was paid to him. 2. It has come on record that writ petitioner-respondent superannuated in December, 2001. For release of his retiral benefits he was compelled to file SWP no. 800/2006 which was disposed of by the Writ Court on 12.09.2008 with a direction to appellant-Chief Engineer to personally enquire into the matter and release the G.P.F. to the writ petitioner-respondent after completing all the formalities as per rules. The Writ Court had further directed that interest on GPF be also paid to the writ petitioner-respondent as admissible under rules. When the interest was paid only for a period of 6 months the writ petitioner- respondent again approached this Court by filing SWP no. 536/201, relatable to the instant appeal, which has been disposed of on 26.07.2012 with a direction to the appellant to pay interest at the rate of 9% on the delayed payment of G.P.F. 3. The Writ Court has noted the objection raised by the appellants in reply affidavit that the amount of G.P. had remained unclaimed and was thus dealt with under ordinary rules relating to G.P.F. The writ petition was disposed of by the learned Writ Court with the following observations:- "The petitioner has specifically pleaded in the writ petition that immediately after his retirement on superannuation in December, 2001, he approached the respondents for release and payment of his retiral benefits/pension. Respondents have replied the same by saying that G.P. Fund case of petitioner was settled as per rules in vogue. They have not denied the assertion of writ petitioner that immediately after his retirement from service he approached them for his retiral benefits. In the facts of this case, it cannot be said that G.P. Fund remained unclaimed for a period of six months. They have not denied the assertion of writ petitioner that immediately after his retirement from service he approached them for his retiral benefits. In the facts of this case, it cannot be said that G.P. Fund remained unclaimed for a period of six months. For the above stated reasons, this petition is disposed of alongwith connected CMP(s) and respondents are directed to pay the interest @ 9% to the petitioner on the amount of G.P.Fund from the date he retired on superannuation to the date same was paid to him. Respondents to calculate and pay the interest within a period of 12 weeks from the date copy of this order is served." 4. There are categoric findings recorded by the learned Writ Court that the writ petitioner- respondent made a claim for payment of his pension and retiral benefits immediately after his superannuation. However, he has been deprived of the use of his dues for a considerable period. 5. It is well settled that payment of retiral benefits is not a bounty and the process for payment should commence six months before the well known date of retirement of an employee. These are deferred payments which are required to be paid to the employee so as to ensure that ready cash is available and they are not forced to beg and barrow. In Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330 a Constitution Bench of Hon'ble the Supreme Court held that right of the petitioner to receive pension is just like a right to property under Article 31 (1) of the Constitution and the State has no power to withdraw the same. Likewise the said claim is also property under Article 19 (1) (f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that order refusing payment of retiral benefits to the writ petitioner- respondent affects his fundamental rights under Article 31(1) read with Article 19(1) (f) of the Constitution. The aforesaid provision continues to apply to the State of J&K because the provisions of 42nd amendment have not been adopted here. It has also been observed that pension and other retiral benefits are not bounty payable at the sweet will and pleasure of the government. These are valuable rights which are vested in a government servant. The aforesaid provision continues to apply to the State of J&K because the provisions of 42nd amendment have not been adopted here. It has also been observed that pension and other retiral benefits are not bounty payable at the sweet will and pleasure of the government. These are valuable rights which are vested in a government servant. The aforesaid view has been repeatedly applied and followed in subsequent judgments, namely, Bharat Petroleum Management Staff Pensioners v. Bharat Petroleum Corporation Ltd. (1988) 3 SCC 32 and Air India Employees Self-Contributory Superannuation Pension Scheme v. Kuriakose V. Cherian and ors, (2005) 8 SCC 404 . The instant appeal by the State of J&K and its officers is wholly ill advised and could have been easily avoided. 6. Accordingly, the appeal does not warrant admission and is thus liable to be dismissed. For the aforesaid reasons this appeal fails and is dismissed.